Thursday, July 30, 2009

FBBE rejects call for a blanket policy excluding all felons from admission

By Jan PudlowSenior Editor

The Florida Board of Bar Examiners rejected a recommendation from its Character and Fitness Commission that convicted felons need not apply to be a Florida lawyer.

“We did not adopt that recommendation. We believe our current practice is sufficient, and we should consider each case on a case-by-case basis,” said Reginald Hicks, chair of the FBBE. He said the board voted July 16 during its meeting in Palm Beach Gardens.

Hicks said the board “talked about the different degrees of felonies.”

But, he said, “the overriding concern was about a lack of uniformity about who gets to defer prosecution, mitigating factors, and plea deals,” as well as who can afford the best lawyers for the best outcomes when charged with a felony.

“All of that warrants case-by-case determination,” Hicks said.

After studying admissions standards, the first review in 15 years, the Character and Fitness Commission, chaired by Third District Court of Appeal Senior Judge Alan Schwartz, submitted its final report March 2 (see story in April 15 News).

Among the most significant changes the commission recommended was even if civil rights have been restored, convicted felons should not have the privilege of practicing law in Florida, and there should be no second chances for disbarred lawyers.

“We just felt it was inappropriate to have convicted felons barred from being on the Game and Fresh Water Fish Commission and being teachers and masseurs, and a whole slew of what would seem to be nonresponsible positions, and not have it impossible to be a felon for a lawyer,” Schwartz told the News after the commission’s report was filed with the court.

Justice Fred Lewis, who appointed the commission, added at that time: “When people ask, ‘How is it you can be a lawyer and a judge as a convicted felon, but I can’t teach school? Or you can’t be a police officer.’ How does one answer that?”

The board answered the question by voting to keep the present Rule 2-13.3 that says a person who has been convicted of a felony is not eligible to apply until the person’s civil rights have been restored.

The commission recommended disbarment, under existing Bar guidelines, should be permanent, as it is in five states.

“It’s really the same kind of consideration, which gave rise to the felon decision,” Schwartz explained earilier. “We thought it unseemly to have formally disbarred lawyers back in the practice of law and sometimes embarrassing the Bar by committing further wrongs. If you are disbarred, you should be disbarred. But that, of course, means that since it is permanent, or would be permanent, it should be reserved for extreme cases.”

Because disbarment would be permanent, the commission also recommended that Bar discipline guidelines be revised to allow for suspension from the practice for up to five years (currently three years) and amend the rules to require attorneys who have been suspended in Florida for three years or more to reapply for Bar admission.

Asked what the Florida Board of Bar Examiners recommends on the disbarment issue, FBBE Executive Director Michele Gavagni said, “The bottom line was the board will support whatever the Bar decides to do. Disbarment is a Bar rule. We have rules regarding filing an application to get back in. But we are going to have to take a back seat to whatever the Bar decides.”

As this News went to press, Gavagni was busy editing the FBBE response to the commission’s report. She said she planned to file the FBBE response at the Supreme Court soon, and the court then will determine whether it will follow a similar process as rule changes, with opportunities for public comment. She said the court could embrace the commission’s recommendations or the FBBE’s response or any combination